- The Washington Times - Saturday, February 1, 2003

Doris Meissner, President Clinton's Immigration and Naturalization Service (INS) commissioner, used her last hours in office to issue a directive reminiscent of Mr. Clinton's criminal pardons.

But while Mr. Clinton's pardons targeted a finite group of criminals and sparked national controversy, Miss Meissner's directive targets an open-ended class of criminals and has gone almost unnoticed.

Meissner left INS Nov. 17, 2000. That day, she sent a memorandum to INS field leaders, including the chief agents in the Border Patrol's 22 sectors nationwide. Titled "Exercising Prosecutorial Discretion," the memo provided "guidelines" encouraging field officers to forgo enforcing a 1996 immigration law against some criminal aliens who, under that law, faced mandatory detention during immigration proceedings and almost certain deportation as a result of those proceedings.

Eleven days later, the INS published a "fact sheet" explaining Miss Meissner's guidelines. It denigrated the 1996 law.

"Prosecutorial discretion," said the sheet, "is not a full or adequate substitute for the forms of relief previously available from an immigration judge prior to the changes in the law in 1996."

"Ultimately," it said, "INS believes that a complete solution requires legislation to restore, to certain aliens affected by the 1996 changes, the possibility of a grant of relief by immigration judges during the removal process."

For whom did Miss Meissner seek relief? Certain aliens convicted of crimes that the immigration law defines as "aggravated felonies" (a category including rape, sexual abuse of a minor, transporting prostitutes and alien smuggling).

The 1996 law aimed at detaining and deporting criminal aliens who had previously slipped through the cracks of INS enforcement.

While maintaining a mandate that the INS detain any alien convicted of an "aggravated felony," the law expanded the list of crimes in that category, and limited the discretion of immigration judges to exempt such aliens from deportation.

Sen. Jon Kyl, Arizona Republican, said in 1996 that the law "provides for mandatory detention of most deportable, criminal aliens and requires those aliens to be deported within 90 days."

But Miss Meissner's memo pointed to a loophole through which INS could slip criminal aliens past the law.

An immigration proceeding begins when an INS officer issues an alien a Notice to Appear (NTA). When an alien who is an aggravated felon receives an NTA, the law says he must be detained. But if an INS officer uses "prosecutorial discretion" not to issue an NTA in the first place, the felon can escape U.S. immigration law entirely.

"Even when an immigration officer has reason to believe that an alien is removable and that there is sufficient evidence to obtain a final order for removal, it may be appropriate to decline to proceed with that case," wrote Miss Meissner. "This is true even when an alien is removable based on his or her criminal history and when the alien if served with an NTA would be subject to mandatory detention."

All INS offices, Miss Meissner directed, "should abide by a favorable prosecutorial discretion decision taken by another office as a matter of INS policy." INS field officers, in effect, could grant nationwide immigration pardons to criminal aliens.

How would INS monitor this awesome power? A chief patrol officer's "exercise of prosecutorial discretion will not normally be reviewed by Regional or Headquarters authority," wrote Miss Meissner. But what if a freed felon hurt someone? "We cannot promise INS officers that they will never be sued," she wrote. "However, we can assure our employees that federal law shields INS employees who act in reasonable reliance upon properly promulgated agency guidance within the agency's legal authority such as this memorandum from personal legal liability for those actions."

INS spokesman Bill Strassberger said he did not know how many criminal aliens have been released, but that Miss Meissner's guidelines still INS policy were aimed at just a few hard cases. "This is compassionate conservatism," he said.

Rep. Lamar Smith, Texas Republican and sponsor of the 1996 law, had a different take. "This is yet another disturbing example of the INS' refusal to enforce the law," he said. "The Meissner memo only encourages more illegal aliens to cross our borders. Our country will not be safe from terrorists and our borders will not be secure unless our immigration laws are enforced."


Terence P. Jeffrey is the editor of Human Events and a nationally syndicated columnist.

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